FAMM: Sentencing Commission Amends the Career Offender Guideline and Publishes New Proposed Amendments
Date:  01-13-2016

Amendment will not be retroactive to the dismay of many sentencing reform advocates
The following announcement was released by Families for Mandatory Minimums (FAMM).

Post Date: January 11, 2016

The Sentencing Commission met on Friday, January 8 and voted to (1) amend the Career Offender guideline and (2) publish new proposed amendments for the 2015-2016 amendment cycle.

Career Offender Guideline to Change

The Commission changed the definition of crime of violence in several important ways. This is important because prior crimes of violence can be used to trigger career offender sentencing. Career Offender status vastly increases the ordinary guideline range the judge calculates, increasing it to a range at or near the maximum allowed by law. The Commission removed certain definitions of crime of violence so that certain prior convictions will no longer be counted for career offender purposes:

Elimination of the residual clause. The career offender guideline considers certain prior crimes violent if they “otherwise involve conduct that presents a serious potential risk of physical injury to another.” In 2015, the Supreme Court struck as unconstitutional an identical residual clause used to trigger enhanced mandatory minimum sentences under the Armed Career Criminal Act. Though the Supreme Court did not decide whether the residual clause was unconstitutional when used to trigger career offender status, the Commission decided to act. Many stakeholders, including FAMM, had urged the Commission to eliminate the residual clause. The residual clause will be removed from the career offender guideline.

Elimination of burglary of a dwelling. The guidelines “commentary” section had listed a set of offenses that would be considered crimes of violence. They included burglary of a dwelling. Many, including FAMM in our letter to the Commission, had argued that such crimes were not violent by nature and the Commission agreed. The Commission removed burglary of a dwelling from the list. It did suggest an upward departure to judges in cases where a burglary involves violence.

Several other changes are also proposed, including definitions for “forcible sex offense” and “extortion.” Contrary to rumors, the Commission did not consider adding child pornography offenses to the definition of crime of violence.

No retroactivity. The Commission did not vote to study the impact of making these changes retroactive. This means that the amendment will not be made retroactive. Chair Patti B. Saris explained that the Commission must consider the impact of retroactivity before voting to make an amendment retroactive. Because data are not collected or readily available about which prior crimes were considered crimes of violence under the residual clause, it would be impossible to assess its impact in any meaningful way. FAMM had encouraged the Commission to study making the changes retroactive.

The Commission plans to publish a report on the career offender guideline later this year and it may include recommendations for Congress. We will keep a close eye out for that report and let you know as soon as it is available. Changes to the career offender guideline are limited due to the statute that Congress passed that requires such lengthy sentencing ranges. This means real reform to career offender sentencing must come from Congress. New Proposed Guidelines and/or Issues for Comment The Commission also voted to publish a small group of recommended changes to the guidelines and asked for public comment on those changes. Two hearings are planned, one on February 17 and another on March 16. Public comment letters are due to the Commission by March 21, 2016. The Commission will finalize the guidelines for congressional consideration by May 1.

The proposals include changes to the Compassionate Release Policy Statement, changes to the Child Pornography guideline to resolve different interpretations by the courts of appeals, and changes to the immigration guideline, among others.

The Commission asks a series of questions in the issue for comment about the compassionate release statute based on developments by the Bureau of Prisons that administers compassionate release and a scathing report and recommendations by the Inspector General of the Department Justice about the program. FAMM has been very involved in the ongoing struggle to encourage the BOP to use compassionate release more robustly, including our report, with Human Rights Watch in 2012. Among the changes considered to the child pornography guidelines is a potential amendment to the file sharing enhancement. Some courts apply the enhancement only if the defendant knew or acted in reckless disregard of the file sharing feature of the computer program they use. Some courts allow the enhancement if a defendant used a peer-to- peer file sharing program even if there is no proof that the defendant was aware of the file sharing nature of the program. The proposed amendment would adopt the first approach. FAMM will be studying and commenting on these proposals and will keep you updated on developments, including reporting on hearings and votes. Stay tuned.